Today’s Business: Accommodation for those with new disabilities

On Behalf of Mitchell & Sheahan, P.C. | Nov 13, 2020 | Americans With Disabilities Act |

Photo: Contributed Photo : Reese Mitchell

When an employee develops a disability and still can perform the essential functions of the job, an employer has a responsibility to provide what is called a “reasonable accommodation.” But that doesn’t always work.

If that employer cannot find an alternate job for that employee or accommodate the injury or disability, the employee can be let go.

The federal Americans with Disabilities Act states that an employer must provide a reasonable accommodation to an employee with a disability unless the accommodation causes undue hardship to the business or the employer. Determining what is a reasonable accommodation can be a fine line for employers. As well, determining what may be an undue hardship may well be subjective.

Unless considerable common sense is brought to the table, along with a degree of flexibility on the part of both employer and employee, the subjectivity easily can lead to litigation.

It’s better for all concerned if employer and employee reach a mutually satisfactory solution.

A place to start is with the definition of what the ordinary person would consider a “reasonable” accommodation.

Unreasonable: If the proposed accommodation would drive a company into bankruptcy, for example.

Reasonable: A few extra bathroom breaks throughout the day due to an illness.

One example that can help illustrate this issue involves an employee who works on his or her feet all day and injures a leg on the job. That employee, who has a doctor’s order to stay home and off the leg for one month, could request an accommodation. Depending on what type of work that person does, it might be reasonable for his employer to grant him an accommodation, perhaps desk duty instead of walking a beat.

Another example involves an employee who has a particular susceptibility to COVID. If that employee is concerned that the office is a COVID hotspot, then it would be a “reasonable accommodation” for that person’s employer to give them a laptop so they could work from home.

However, if that an employee suddenly becomes unable to use a laptop as a result of an accident, a reasonable accommodation might not be viable, so the employee could be terminated.

A third example: Consider an individual who digs ditches on a construction site. If he or she loses an arm and is unable to dig, the employer doesn’t have to buy a prosthetic arm but could provide an appropriate desk job if one is available — but only if it’s available. An employer doesn’t have to create a new position to make a “reasonable accommodation.”

Think an employee is asking for too much? He or she might be — a good time to seek legal advice.

The bottom line: An accommodation that an employee seeks may indeed seem unreasonable, but it might take the courts years to sort it all out. Is denying the accommodation worth litigation? Could a compromise work? Even if it costs a bit more than what the employer considers reasonable, it still may be worth it in the long run.

Attorney Reese Mitchell is an associate at Stratford-based Mitchell & Sheahan, P.C. He is involved in handling all types of employment matters, including through all stages of the litigation process. He can be reached at [email protected]
or at 203-527-0190.

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